THE ADMINISTRATION OF JUSTICE IN THE REIGN OF AKBAR AND AWRANGZIB: AN OVERVIEW
MUHAMMAD MUNIR
Dr. Muhammad Munir, PhD, is Associate Professor and Chairman Department of Law, Faculty of Shari‘ah & Law, International Islamic University, Islamabad.
1. Introduction
Muslims came to India in a great
number when Sindh was brought under their rule in 712 A.D. by Muhammad b. Qasim
(d. 98/717) at the time of the sixth Ummayyad Caliph, al-Walid b. ‘Abdul Malik
I (d. 86/705). However, relations between some Indian principalities and the
Muslim state of Madina can be traced back to the time of the second Khalif
‛Umar – the second successor of the Prophet (PBUH), when a delegation from
Sarandip (India) visited him in the early days of his reign. Indian coasts
attracted many Muslim businessmen to areas such as Malabar. In 15 A.H. the
Muslim state sent expeditions to areas of today’s Baluchistan and Sindh. Makran
was conquered by Muslims in 21 A.H. (Mubarakpuri, 1967). In the north, Mahmud
b. Subaktageen of Ghazni (d. 421/1030) occupied a major portion of the Punjab,
followed by Shahabuddin Muhammad Ghori (d. 602/1206) who annexed Punjab making
it a part of the Caliphate (Juzjani, 2006, 41-47). Delhi fell to the Muslim
Commander Shahabuddin Ghori in 1192. The Delhi Sultanate was founded by
Qutbuddin Aibak (d. 607/1210-11) of the Slave Dynasty in 1206. Though initially
Qutbuddin Aibak made Delhi his headquarter as the viceroy of his royal master,
Shahabuddin Ghori, officially the Sultanate came into existence in 1206, when
the viceroy became the first independent Sultan of Delhi after the death of his
royal master in 1206. The Slave Dynasty lasted till 1290, when the second
Muslim dynasty, the Khaljis, got power in India. The Khaljis were defeated by the
Thughluqs, the third dynasty, in 1320, while the Thughluqs were overpowered by
the Sayyids, the fourth dynasty in 1414. The Sayyids ruled until 1454 when they
were beaten by the Lodhis, the fifth dynasty that lasted till 1526. The Lodhis
were defeated by Zaheeruddin Babar (d. 936/1530) who laid down the foundations
of the Mughal Empire and Muslim power reached its zenith in India.
Six extraordinary emperors, in a
direct line of descent from Babar, ruled between 1526 and 1707. The Mughal
dynasty was interrupted by the Suris from 1539 till 1555 when Nasiruddin
Humayun (d. 963/1556) was restored to power (Mitchell, 2000, 3-4). Humayun was
forced to flee in 1542 after his defeat and sought asylum at the Persian court
of Shah Tahmasap. He defeated his brothers and gained control of Qandahar and
Kabul in 1545. Meanwhile Sher Shah Suri (d. 1545) was killed by the Rajputs
during a fight and when the Afghans were defeated by Humayun in Lahore in 1555,
he was restored to the throne once again. Humayun, on his restoration, “put the
idea of a suzerain Caliph to an end.” (Qureshi, 1958, 38 & Husaini, 1952,
22-30). Till that time the successive Muslim rulers considered themselves as
the vassal of Khalifa.
Although the Mughal dynasty continued
till 1857, it was in decay since the death of Muhiyuddin Muhammad Awrangzeb in
1118/1707. For the purpose of this work we will concentrate on the judicial
system of Jalal uddin Akbar (1556-1605) and Awrangzeb (1658-1707) because the
Empire under these two is believed to be at its climax. However, between the
reigns of these two the contribution of Nuriddin Muhammad Jahangir
(d.1037/1627) cannot be ignored and must be discussed to have a complete
picture. Akbar and Awrangzeb were very different in terms of religiosity and
presented distinct and opposing political models.
Akbar tried to create a hybrid
between Islam and Hinduism – in his new order (tariqat) which was believed to
be a synthesis with Hinduism, providing some form of accommodation on the cultural
and religious planes. The latter rejected this model outright. The former was
praised by his Hindus subject while the latter by the Muslim population. The
judicial system under both Akbar and Awrangzeb were very much similar, as will
be explained below. With the exception of Awranzeb, the Mughul governments in
India were purely secular in nature. Although the Emperors were deeply
religious men, they did not view themselves as monarchs who had to guard the
interests of only one section of their subjects. In matters of governance they
held the scales evenly balanced between all communities under their sway.
The Mughul rulers of this epoch
ruled by decrees or firmans. The Sultan was the chief executive, sole
legislator, and the chief judge of the land. All the three powers concentrated
in him. Akbar had forbidden the killing of cows by law, because that was
offensive to Hindus. He had also abolished jizyah (poll-tax) early in his reign
to please his Hindu subjects. Under the previous Muslim rulers the Hindus had
acquired the status of dhimmies, i.e., persons who while retaining their own
religion, were exempted from military service on payment of a poll tax. He had
also appointed a large number of Hindus to responsible posts (Qadri, 1968, 112-115).
Abul Fadl b. Mubarak (d.1011/1602) remarks, that “[F]or monarchs the worship
consists in the proper discharge of their duties to their subjects” (Fadl,
1975, 163). Mulla ‘Abdul Qadir Badauni (d. 1024/1615) once remarked that Akbar
insisted that the cases of Hindus be decided by Hindu judges and not Muslim
Qadhis (Badauni, 1998-1925, II, 356). Akbar was under the influence of his
secretary Abul Fadl who wrote Akbarnama (Fadl, 1993, iii). He is believed to be
the champion of heterodoxy. He could well be called the chief architect of
Akbar's new cult or order (tariqat) in which he deviated quite a lot from
orthodoxy (Ikram, 1982, 127-131). Some historians deny that Akbar had innovated
a new religion – Din-i-Elahi. They argue that he had innovated probably a cult or an order but not
a new religion. (Ikram, 1982, 127-131 & Qureshi, 1990, 33). The success of
Muslim rulers in India was gauged by their ability to tread the fine line
between being an orthodox sunni khalifah, while at the same time mollifying a potentially
aggressive, non-Muslim subject population. Akbar believed that:
Justice
and Beneficence must be exercised alike for all subjects (jami ‛ri‛ayat). The
King is the shadow of God and the gift of Divine mercy is common to his
subjects believers and non-believers. A king must curtail the hand of
oppressions (zulm) upon the weak because the prophet says ‘the cry of the
victim of injustice even if he be a kafir is never rejected by God’. (Fadl,
1993, III, 257).
His
Hindu subjects were the main beneficiary of his scheme. His greatest
contribution to a country whose sole industry was agriculture was his
systemization of the revenue assessment. Under the zabity system introduced by
him, he levied a fixed tax which was quite fair to the peasant. Under the
previous system, the price of each variety of grain had to be determined each
season. He divided the whole country into 119 dasturs (assessment circles).
Each piece of the land in the various dasturs had to pay a fixed amount which
depended on the area and quality of the land. The system is largely unchanged
in present day India and Pakistan.
Abul
Fadl was responsible for the conflict between Akbar and his first Qadi-ul-Qudat
(Chief Justice) – ‛Abd-un-Nabi. The reason of the conflict is interesting. The
qadi of Mathura had ordered the construction of a mosque. A Brahman Hindu
removed the construction material out of his hostility to Islam. The qadi
summoned the Brahman to his court. The arrogant Brahman not only disobeyed the
order but used abusive language for the Prophet (PBUH). The local qadi informed
the Chief Justice who summoned the Brahman to his court and found him guilty of
blasphemy. The Brahman was sentenced to death by ‛Abd-un-Nabi. Since all
capital punishments had to be approved by the Emperor, the case was submitted
by the Qadi al-Qudat to Akbar for confirmation and orders. Akbar refused to
execute the Brahman because he was deviated from orthodoxy. In addition,
influential Hindu officials working with Akbar interceded with Akbar on behalf
of the Brahman. Akbar ordered a secret inquiry into the facts of the case and
gave this task to the staunch opponents of ‛Abd-un-Nabi. The inquiry, however,
confirmed the charges. Akbar was even then reluctant to execute the Brahman and
asked ‛Abd-un-Nabi not to execute the man. ‛Abd-un-Nabi, however, pressed for
execution. When Akbar could not find a way out he did not give clear orders and
left the matter to ‛Abd-un-Nabi who executed the man. Akbar did so because he
was too circumspect to take upon himself the responsibility of setting aside
the decision of the court (Badauni, 1998-1925, II, 80-83).
Akbar
sacked all his existing Qadis and one of the conditions of appointment
necessary to the highest judicial and religious post was adherence to Akbar's
religious philosophy (Badauni, 1998-1925, 284). Moreover, the emoluments and
grants of religiousness were cut down and gradually old recipients of grants
were totally eliminated. Despite the incident noted above, the judiciary by and
large functioned freely (Qureshi, 1958, 186). The heterodox ‛ulama gathered
around Sheikh Mubarek – Abul Fadl's father, to play a trick that would make
Akbar an Emperor of the highest legal authority. Sheikh Mubarak Nagauri drew up
a document to which the leading ‛ulama of the court were forced to affix their
signatures. Its main purpose was to establish that if the jurists differed on a
point of the law, Akbar would decide what interpretation he would enforce. The
document was called mahdar (Ikram, 1982, 102-104). It was basically an assembly
of the leading ‛ulama who supported Akbar. They got together, discussed the
issue and agreed that in case of their disagreement on a question of Islamic
law, Akbar would decide the issue. (Ikram, 1982, 102-104). It is important to
note that different English authors have spelled 'mahdar' differently. Mitchell
mentions the word 'mazhar'. (Mitchell, 2000, 12). The scheme did not succeed as
such because no situation has been reported in which the ‛ulama had differed to
such an extent that Akbar had to intervene personally. Abul Fadl painted and
propagated the image of Akbar as a ‘supreme dispenser of justice.’
The
most visible manifestation of the emperor’s role in judicial affairs was the
evolution of the jharoka-i darshan, which had been a Hindu institution
innovated by Akbar to facilitate public appearance. According to Mitchell,
“adapting a previously Hindu facility such as this was one of the many examples
of Muslim Indianization common to the sixteenth and seventeenth centuries”
(Mitchell, 2000, 195). In general, Mughul Emperors were impartial and stern in
delivering justice to their subjects. Abul Fadl mentions that: “His Majesty in
his court makes no difference between relative and stranger and no distinction
between a chief and a tangle haired beggar”, (Fadl, 1993, 387). Akbar gave
death sentence to a powerful military Chief of Gujrat for the murder of one
Changez Khan on the complaint of the mother of the deceased (Husaini, 1952,
209). Akbar’s judicial policies seem to be partly motivated by the humanitarian
principles of sulh-i kul and partly to reassure the Rajput nobility serving in
the Mughal court.
The
second important Mughal emperor to mention in this work after Akbar and before
Awrangzeeb, is Jahangir. He ascended the throne in 1605 and retained his
father’s definition of a just ruler. As a king the first order he gave was
“[F]or the fastening up of the Chain of Justice, so that if those engaged in
the administration of justice should delay or practice hypocrisy in the matter
of seeking justice, the oppressed might come to this chain and shake it so that
its noise might attract attention” (Jahangir, 1625, I, 7). Following this he
issued twelve ordinances, varying from the banning of river toll fees to
prohibitions against facial disfigurement (Jahangir, 1625, 7-10). Whenever, he
periodically shifted his royal court, one of his first orders was to have a
temporary judiciary built in the new city. He did this in Ajmir and Ahmadabad.
He used to hear civil and criminal cases every week (Hasan, 1936, 318).
In
his letter of January 17, 1615, Sir Thomas Roe, Ambassador of English King
James I from 1615 – 19 to the court of Jahangir, sums up what he observed in
his initial days in the court and says that “They have no written law. The King
by his owne word ruleth, and his governours of provinces by that authoritie.
Once a week he sitteth in judgment patiently, and giveth sentence for crimes
capitall and civill” (Foster, 1990, 89). He took equality before the law so
seriously that, after hearing how the governor of Punjab, Sa‛id Khan Chaghta’i,
was ruthlessly extracting revenue in his area, the Emperor sent him a message
that “[M]y justice would not put up with oppression from anyone, and that in
the scales of equity neither smallness nor greatness was regarded. If after
this any cruelty or harshness should be observed on the part of his people, he
would receive punishment without favour” (Jahangir, 1625, I, 13). Jahangir
deplored murder committed by the nephew of Khan ‛Alam, Hushang, and when he was
found guilty, the king said, “God forbid that in such affairs I should consider
princes, and far less I should consider amirs. I hope that the grace of God may
support me in this” (Jahangir, 1625, II, 211). With these words, the emperor
had Hushang executed. He was very particular about guaranteeing the rights of
minorities. In 1608, he issued a firman to the governor, officials and
jagirdars of the province of Gujrat ordering them to safeguard the temples and
dharamsalas of the Jain community. They were also ordered not to levy taxes on
pilgrims visiting the Tirtha of Shatrunjaya (Mitchell, 2000, 197).
3.
Judiciary Under Awrangzeb
Under Awrangzeb, courts were
extremely independent and were used as a byword for independence. Manucci, who
was on the personal staff of Dara Shikoh and has strong dislike of his
opponents, testifies to this. He mentions that when Awrangzeb himself wanted
the court to give capital punishment to an accused in a case, the court refused
to accept the plea (Manucci, 1907-08, IV, 119). Alamghir had been extremely
neutral otherwise. He appointed a group of eminent jurists to try Dara Shikoh,
his brother who was accused of apostasy. Dara Shikoh was another Akbar in the
making because he was more learned. He had translated many books on Hindu
philosophy, was the leader of the heterodox, and was an opponent of orthodoxy.
Alamghir wanted to demonstrate to the world that he was neutral in the trial
and that his treatment of his father, whom he jailed because he had sided with
Dara Shikoh, was justified. The special tribunal held that Dara Shikoh’s
religious opinions amounted to apostasy and he was executed in September 1659
(Khan, 1874, 47-48). Alamghir did not intervene in the case although it was
political in nature.
Alamghir
is credited for ordering the famous Al-Fatawa al-Alamgiriyah (hereafter Fatawa)
– also known as Fatawa Hindiyah – by a Royal Commission of ‛Ulama under the
supervision of Sheikh Nizam (Ahmad, 1941, 42). It was translated in parts by N
E Baillie as Digest of Moohummudan Law (Baillie, 1875). The Code was the great
Corpus Juris of Aurangzeb’s reign and is more or less an exposition of the
substantive law then prevailing in India. It was not only used by the Qadis of
Alamgir but also by other Emperors till the end of the Mughal dynasty. The
Fatawa replaced Fiqh-e-Firoz Shahi, which was a Code of Civil Procedure
compiled at the time of Firoz Shah Tughlaq (790/1388). This book remained the
basis of the judicial system under the Delhi rulers until replaced by the
Al-Fatawa al- Alamgiriyah (Ahmad, 1941, 41-42).
3.1 Legal Reforms of Aurangzeb
Of all the Mughal rulers Aurangzeb introduced
a series of legal reforms in the administration of justice, some of which
survive to this day in both Pakistan and India.
First, he introduced the system of
“Remand” of accused by the court to the police custody (Khan, 1930, 278-282 ).
The Kotwals were ordered to obtain a written order from the Qazi to keep a man
under custody for the purpose of investigation. Secondly, he took particular
notice of the delay in the disposal of cases and issued directions that all
criminal cases must be tried without delay. If after the first date of hearing
the case was not taken up, the next day the Kotwal was required to send the
prisoners daily to the courts till matters were decided (har roz anja be
ferisand ke maamlah ra be istejal faisal numayend) (Khan, 1930, 282-283).
Thirdly, he issued a Firman that no one was to be taken into custody until
prima facie legal evidence was available and that no prisoner was to remain in
jail without a lawful charge (hech kas be hisab dar qaed na manad). It is not
clear whether it is a mere coincidence or otherwise that when Aurangzeb was
issuing these regulations in India in 1679, the British Parliament was enacting
the Habeas Courpus Act for England. Fourthly, Aurangzeb wanted transparency in
administrative as well as judicial matters and to this end he directed the
keepers of State records of rights to permit the public to examine the same.
Fifthly, for the first time in the reign of Aurangzeb ‘Vakils’ (lawyers) were
appointed to defend suits against the State in every district. They were known
as Vakil-e-Sarkar or Vakil-e-Shara’ (Ahmad, 1941, 163-4,191, 218). They used to
receive a fee of Rupee one daily (Khan, 1930, 149). These Vakils had to give
free legal advice to the poor. They were appointed by the Chief Qazi of the
Province or sometimes by the Qazi-ul-Quzat. Sixthly, Awrangzeb had framed
written regulations (Zabath) on every subject and required strict adherence to
them. This was in addition to his achieving the compilation of Al-Fatawa
al-Alamgiriyah. Finally, Awrangzeb also reformed the appeal system. He issued
orders that parties should get their disputes decided by the local Qazi in the
first instance before bringing their cases to him (Ahmad, 1941, 266-268).
Awrangzeb issued orders for the
preparation of “Mahzarnamahs” or records of judgments of higher Courts for
circulation among the Qazis and Muftis (Ahmad, 1941, 188). Unfortunately, no
published record of these cases is available. The only manuscript with details
of cases and judgments is Baqiyat al-Salihat, which contains fifty judgments
during the period 1550-1850 A. D. The judgments are written in Persian and bear
the seal of the Court. Basheer has found a manuscript called Baqiyat al-Salihat
which contains 50 recorded cases from the Mughal era 1550-1850. Every case
describes the facts, the reasons for the decision, and is signed and stamped
(Ahmad, 1941, 37). Basheer later migrated to Pakistan, became a judge of the
Erstwhile West Pakistan High Court, and published the second edition of his
book in which he mentions in the preface that he has donated the manuscript
(Baqiat) to the National Museum in Karachi (Ahmad, 1978, xiii). The present
author has made his best efforts to get a copy of the book from the Museum but
it is neither listed in the catalogue nor available there. Basheer does not
seem to have updated the whole book for the second edition as he mentions on
page 16 that he intends to publish it (Ahmad, 1978, 16).
Some
authors have mentioned that the Mughul Qadis were very corrupt (Jain, 1966, 46
& Jadunath, 1972, 75). However, it is difficult to believe their assertions
and ignore Manucci, a European, who has recorded his eye account. Khawfi has
also praised the independence and impartiality of Muguhl’s judicial system
(Khan, 1874, 216, 550).
4. Court Organisation and Personnel
Before giving details of court
structure and personals it is necessary to mention the central government of
the Mughals. The Emperor was the Commander-in-Chief of the entire army and
Navy. The Emperor had a council of ministers, the most influential among them
was the Wazir or Vakil-e-Mutlaq or Dastur-e-Mua‛zzam. He was like the modern
day Prime Minister. Other ministers approached the Emperor through him. The
revenue, finance and agricultural departments were under the Diwan-e-‛Ala who
was also the final appellate court for revenue cases. Military administration,
the salaries and accounts were under the Mir Bakhshi while the administration
of justice, jails, customs, baitul mal and mosques were under the Chief
Justice, Qadi al-Qudat. Other notables ministers were Darogha-e-Topkhana
(Master General of Ordnance); Darogha-e-Dak (Post Master General); Mir Saman
(Lord High Steward of the Imperial Household); Sadrus Sudur in charge of the
Ecclesiastical Department; and Mohtasib-e-Mumalik-e-Mahrusah or the Chief
Mohtasib. He was the Chief Public Prosecutor in State cases and was also the
Chief Censor of Morals.
4.1
Diwan-e-Mazalim
From the very beginning of the
Muslim Empire, cases were categorized as civil, criminal and political. The latter
two were always tried by the Khalifah himself while the former two types were
decided by the Qadis. Political and administrative cases were sometimes secular
in nature and were described as Nazar fi al-Mazalim by the Fuqaha (Muslim
jurists). It is known as ‘siyasa shar‛iya and can be translated as ‘the
administration of justice according to the shari‛ah’. Muslim jurists expounded
the sphere of the Islamic legal system that was fixed and left the part that
was flexible – changing with the times, according to the needs of the Muslim
community, to the Imam (the head of the Islamic state). It is this function
that the ruler carried out through a policy called the ‘siyasah shar‛iyah’
(Nyazee, 1995, 111-2). Both Akbar and Awrangzeb devoted one day of the week to
such cases and called it Diwan-i-Mazalim (Sarkar, 1972, 72). At the Imperial
Capital (Darul Sultanat), the Emperor was the first judge of the realm and the
'fountainhead of Justice'. Shah Jahan and Awrangzeb used to hold this special
court on Wednesdays. On that day the Emperor would come directly from the
window or balcony where he used to appear before the public every morning, (The
practice of appearing from the balcony was started by Akbar and was
discontinued by Awrangzeb after sometime in his reign) to the Diwan-i-Khas (or
Hall of Private Audience) and would sit on the throne of Justice. The Hall was
filled with the judges (Qadis), muftis (‛ulama), the kotwal or prefect of the
city police, the superintendent of the law court (darogha-i-adalat) and the
muhtasib. Plaintiffs were presented one by one before the Emperor and narrated
their grievances. The Emperor would gently ascertain the facts by asking
questions consult the muftis and pronounce the judgment accordingly. As the
fountainhead of justice, he tried original civil and criminal cases and also
sat as the final aegis of appeal within the Empire. As an appeal court the
Emperor presided over a Bench consisting of the Chief Justice and Qazis of the
Chief Justice's Court and decided both questions of law and fact. (Kazim,
1864-73, 1097, 1102). As a court of first instance he generally had the
assistance of a Darogha-e-Adalat, a Mufti and a Mir ‛Adl. Moreover, all capital
punishments were required to be confirmed by the Emperor. All the European travelers
have given their accounts of how the Mughul Emperors held courts on a special
day (Foster, 1921, 72-73).
4.2
The Chief Justice or Qadi-ul-Qudat
Below Diwan-i-Mazalim, there was the
court of Qadi al-Qudat or the Chief Justice (Fadl, 1975, 185). He used to
administer the oath of accession to the Sovereign and to order khutbah or
Friday sermon to be read in the Emperor's name in the mosques in order to give
validity to his accession (Manucci, 1625, I, 381). The appointment of the Chief
Justice was made by the Emperor. The Chief Justice had the power to try
original civil and criminal cases, and to hear appeals from and to supervise
the working of the Provincial Courts. He was assisted by one or two Qadis of
eminence. Below the Qadi al-Qudat's court the Imperial capital had its own Qadi
who was like the Chief Qadi of a Province (Qadri, 1974, 120). The military area
in the capital had its own Qadi (Qadi-e-Askar) who moved from place to place
with the troops. Sometimes the officer was styled as Qadi-e-Urdu. Urdu means
army in Persian (Kazim, 1864-73 ). Thus, the capital had a lower court presided
over by the qadi, a court of appeal presided over by the Qadi al-Qudat and
above that the Royal Court (Diwan-i-Mazalim) (Hussein, 1934, 38).
Many
officers were attached to the courts mentioned above. They were
Darogha-e-Adalat who used to receive applications filed in each court. He was
also sometimes known as Darogha-e-Kachehri (Ahmad, 1941, 147); Mufti – whose
job was to give legal opinion, but not to give judgment. The Mufti attached to
the Chief Justice's Court was known as Mufti-e-Azam or Sadre Jahan (Fadl, 1975,
I, 185). There were Mohtasibs attached to the Capital who were generally the
Prosecutors in Canon Law cases; Mir ‛Adl was an administrative officer to
assist the court. A very important post in the Capital was that of
Diwan-e-‘Ala, who was the final authority on Revenue and Financial matters.
Appeals in these matters rarely came to him from the Provinces.
4.1.1 Provincial Chief Qadi
In the Provinces (Subahas) there used
to be a Governor or Subahdhar. He was also called Nazim in Bengal and Gujrat
and he was responsible for maintaining law and order and was also the
Commander-in-Chief of the army within his Province. Initially the word
siphasalar was the title of the provincial Governor but later on the term
subahdar was used and sometimes even nazim-i-subah was used. (Khan, 1930, 149).
He was also the court of appeal for revenue cases within his Province. When the
Governor left the Subah for some urgent work he could appoint the Diwan to act
for him during his temporary absence. (Blochman, 1927, 37). During the later
Mughal period (1750 – 1857) the Governor, especially in Bengal, did a lot of
judicial work and for this purpose two officers were attached to his court.
However, the Governor used to appoint an official called the
Darogh-e-Adalat-e-Aliah to run the judicial work of the Governor and this
practice was abolished in 1820. The Provincial Judicial Department was under the
Chief Provincial Qadi called Qadi-e-Subah who was appointed by the Emperor and
had original civil and criminal jurisdiction and was the Chief Court of Appeal
in the Province hearing appeals from the District Qadis. Moreover, he had a
permanent seat on the Bench of the Governor’s Court and administered oath of
office to a new Governor. Officers attached to the court of the Chief
Provincial Qadi were: a Mufti; a Mohtasib; Darogha-e-Adalat-e-Subah; Mir‛Adl;
Pandit; Sawaneh Nawis; and Waqae Nigar. Beside the court of the Chief Qadi of
Subah there used to be the office of Diwan-e-Subah for revenue and financial
cases and to assist Diwan-e Subah other staff was, Peshkar or a modern day
Reader; Darogha called the superintendent of the office; Mushrif or the treasurer
and Tahvildar or the cashier. His clerical staff included a Munshi, Huzur
Clerk, Subah clerk, Clerks for crown lands and other miscellaneous work,
Record-keepers, Accountants, and Heralds. Appeals usually went to the Governor
but sometimes they would go to the Diwan-e-Alah in the Capital.
4.1.2
District Qadi
There used to be a qadi in each sarkar
(district) who was under the Qadi-e-Subah. The former was in charge of civil
and criminal judicial administration and heard appeals from the courts situated
in other areas of the district. Beside this his other functions include enquiry
of offences; visits to jails and inquiring into cases of prisoners confined
therein; collection of Zakat and jizyah (under Awrangzeb who also transferred
to him the control of mosques); leading Fridays/Eid prayers; attending
important funerals; seeing solemanization of Muslim marriages. His staff
included Peshkar (the equivalent of a modern Reader); a Katib who had to record
evidence and wrote judgements dictated to by the Qadi; Sahebul Majlis who used
to read over depositions of witnesses in Court; Nazir who was incharge of the
court buildings and the menial establishment; Daftari who looked after
stationery and book-binding; Orderlies – usually four to five – were attached
to the Court; Muchalkah Nawis who took bonds for attendance from the parties or
witnesses. Some of these posts still exist in the modern Indo-Pak
Subcontinent. The District Qadi Court
had various officers attached to it. They were Darogah-e-Adalat; Mir ‛Adl;
Mufti; Pandit or Shastri; Mohtasib; and Vakil-e-Shara‘.It is necessary here to
mention that Mohtasib were appointed on the orders of Awrangzeb to enforce
morality. Their departmental chief was the Sadr. Prosecutions in Criminal
Courts were conducted by Mohtasibs and the Police. Whereas, suits against the
State were defended by lawyers appointed full-time in every district and known
as Vakil-e-Sarkar or Vakil-e-Shara‛. They were attached to the court of
District Qadi and received a fee of Rupee one daily. (Khan,149) They had to
give free advice to the poor free of charge; to conduct suits on behalf of
State; and to get State's decrees executed. Sir Thomas mentions the presence of
‘soliciter’ in his correspondence but it could be taken to mean a legal advisor
and not Vakil-i-Sarkar. (Foster, 1990, 261.)
4.1.3 Officials with some Judicial Functions
There were some other officers related
to but not direct part of the judicial department of the Mughals. The first
such officer was the Sadr who was in charge of the Ecclesiastical Department in
the district. He was appointed by the Sadrus Sudur. His duties included:
checking of the 'Sanads' of Qadis, Mohtasibs, Khatibs, Imams, Muezzins and
Mutawallis; issuing 'parwanahs' for the daily stipends of officials and Ulamas
in the city and other towns; and passing bills for payment to charitable
endowments. His judicial functions were limited to settlement of claims
relating to madad-e-m‛aash grants or sitting on a Bench with the District Qadi
to try Canon law case. There used to be a Faujdar – whose judicial functions
included trying petty offences. Later on his powers were enhanced. Kotwal was
another official who was subordinate to the District Qadi and had jurisdiction
in minor offences. Another official was called Amalguzar who decided rent and
revenue cases. To his court was attached a Darogah-e-Katcheri. Waqae Nigar or
Waqae Nawis or Akhbar Nawis recorded proceedings of the courts mentioned above
on daily basis and sent them on to the Emperor. These reports were scrutinized
by Qadi al-Qudat or Qadi-e-Subah.
a. Qadi-e-Parganah
He was the principal officer in the
parganah (town). His jurisdiction extended over the villages included in his
Parganah. His powers were similar to the District Qadi, however, the former
could not hear appeals as there were no subordinate courts to him. A number of
officials were attached to his court. They include a Mufti, a
Mohtasib-e-Parganah, a Darogah-e-‛Adalat where necessary, and a Vakil-e-Shar‛a
(who had a staff of three clerks and one accountant). In some Parganahs there
used to be a Faujdar-e-Parganah who exercised the same powers as the District
Faujdar. A few districts had Amins or Revenue officers, while in other places
there were no faujdars at all and their duties were performed by Shiqdars or
Kotwals (Khan, 1930, 342). Sometimes the local landlords were appointed in
Parganahs to try Common Law cases. Appeals from their courts lay to the
District Qadi's Court. Karori and Amin-e-Parganah used to decide revenue cases
in the Parganah.
b. Panchayat
Much
before the advent of Muslims to India there existed a very good system for
resolving small civil as well as petty criminal cases among the population in
Indian villages. The early Sultans retained the same system. A village used to
have a council of elders called panchayat. These panchayats were very active.
The punishments took the forms of public humiliation, fines and ostracism. The
last punishment had serious social and economic consequences, especially in a
caste based society. Hence the orders of the panchayats were invariably obeyed.
Serious criminal cases came under the jurisdiction of the qadi. Its main
functions were the settlement of disputes. Matrimonial, communal differences,
land, quarrels concerning watering fields and sharing of the produce were
settled by the panchayat.
The
legal relations between the non-Muslim subjects of Muslim rulers in India were
regulated according to the principles of their own faith (Baillie, 1875, 174).
In disputes between a Muslim and a non-Muslim, the decision was given according
to Islamic law, (Husaini, 1952, 196) as already mentioned. When the case was
between two Hindus it was referred to the judgment of the pundits (Hamilton,
1870, 14). They (Panchayat) held their sittings in public and administered
justice in the village in cases involving petty civil disputes and where minor
offences were concerned. The decisions of the Panchayat were binding and
normally no appeal was allowed. The decrees were generally executed. The
Headman or the Chaudhri was usually the head of the Panchayat and had to maintain
peace and security in the village. However, the name of the head differed from
region to region. In the East of the country the Chaudhri was called the
Moqadam, in the West the Patel and in the South the Chetty. Under the later
Mughuls, subordinate courts were established in many of the sub-districts
presided over by a Naib-i-Qadi (Hussein, 1934, 70). Jain argues that the Mughul
judicial system was simple and served the needs of the people (Jain, 1966, 45).
All capital cases had to be approved by the Emperor while all important civil
cases were also brought to him.
The Qadi was the Chief Judge in
criminal cases, and tried them according to Islamic law. Cases between Muslims,
as well as cases in which one of the parties was a Muslim, were tried by him.
The Qadi in each Sarkar had the power to appoint their assistants or
Naib-i-Qadi in important centres. In each sarkar, the Kotwal performed many
duties. He acted as a prefect of the police and a municipal officer. Secular
type of criminal cases went to him. The Mufti was a learned theologian and
consulted books on Islamic law regarding disputes and advised the Qadis who
pronounced the sentence or decision. It appears that each and every Qadi
consulted a Mufti before giving a decision. However, Hussein argues that only
Qadis who were not quite sure about some legal points referred the case to a
mufti and took a fatwa from him (Husaini, 1952, 203).
c.
The Mir ‘Adl
There was a department for
discharging the executive duties of the court. The Mughuls called the officer
responsible Mir 'Adl. Abul Fadl, Akbar's secretary, has summed up in
Ain-i-Akbari, the relationship between the Qadi and Mir'adl in a nutshell: “One
finds out, the other puts (the finding) into effect” (Fadl, 1975, 190-191). The
Mir'Adl used to draw the attention of the Qadi to a miscarriage of justice and
to delay the execution of some decisions pending trial before a higher court.
Moreover, he used to make sure that parties and the witnesses attended the Qadi
court, and that the decrees of the court were executed (Fadl, 1975, 191).
d. Qadi ‛Askar
Under the Mughuls there was a
separate Qadi for the army known as Qadi-i-Askar. His jurisdiction was confined
to military camps. In a case in which one party resided in the jurisdiction of
the qadi-i-askar and other in that of the qadi of the city and the latter
insisted on having the case tried in the city court, the qadi of the army could
not try it unless he had been specially empowered to try all such cases
(Husaini, 1952, 203). However, if both parties belong to the askar and wanted
to take their case to the city qadi, they could do so, and the city qadi had
the power to entertain it (Hassan, 1936, 312). What is clear from this is the
fact that there was no difference as far as the content of law or its
application was concerned. The Qadi of the city as well as the qadi of the
military camp were applying the same law. There could be civil cases in which
two individuals were involved and not a case involving discipline within the
army or breach of army code, etc.
e.
Mohtasib
One of the most important institution
of the Mughal Empire was that of "hisba" under which mohtasibs were
appointed. The Abbasid as well as the other Muslims rulers who ruled the Delhi
sultanate also had the same institutions. Mawardi has given various duties of a
mohtasib (Mawardi, 234, 243, 244). The mohtasib was theoretically responsible
for the maintenance of the Islamic code of morals and behaviour. There was no
overlapping between the duties of a qadi and a mohtasib. The qadi had to
adjudicate disputes that were brought before him. The mohtasib’s jurisdiction
extended to disputes relating to weights and measures, adulteration or fraud in
merchandize and loans that were not disputed and yet which were not paid.
Moreover, his duties included the prevention of nuisance, removal of
obstructions from and encroachment upon public streets. The Ain-i-Akbari does
not mention the institution of mohtasib but there is no evidence that it was
abolished either. It is important, however, that some of the traditional duties
of mohtasib were sometimes transferred to the Kotwal (Qureshi, 1990, 206). All
cities and townships had mohtasibs. All mohtasibs were under the sadr-us-sudur
and were appointed by him (Khan, 1930, 250).
5. Appeals
After sifting through various sources
one cannot find precise rules of appeal as they exist today. What is clear is
that the decision of the lower courts was appealed to the higher court and then
to the highest court. The last court of appeal was the Emperor himself. Appeal
against the decision of a qadi lay to the chief qadi (sadr) in the province and
from there to the court of the Sadr-us-sudur or Qadi-ul-Qudat of the Empire.
This was the appeal system for all civil suits and criminal cases of a
religious character.
Mirat-i-Ahmadi or History of Gujrat by
Ali Muhammad Khan was completed in 1761. It is an excellent book and even the
harsh critic of Mughuls, Sir Judanath Sarkar, calls it a very authentic book
(Sarkar, 1972, 177). It is considered to be the most authentic description of
their legal and administrative rules because it is based on State papers. It
gives full copies of imperial Firmans (decrees) addressed to the officials of
this province. One of the famous firmans, sent by Awrangzeb Alamghir to the Diwan
of Gujrat on 16th June 1672, gives his penal code in a nutshell (Khan, 1930,
278-283). The whole firman cannot be given here but some of the court
personnel, their jurisdictions, and the appeal system are extracted below to
understand the nature of judicial system in Gujrat because the same was applied
in other provinces of the empire. The code mentions that all serious criminal
cases like theft, highway robbery and homicide are decided by the qadi.
Moreover, in case of crimes for which punishment is not fixed in Islamic law,
the court has the discretion to give the punishment of ta‘zir. If capital
punishment was awarded by the Qadi, the person was put in prison while the case
was reported to the Emperor for confirmation. Cases of revenue were disposed off
by the revenue officers. When a man was brought to the chabothra of the Kotwal
under arrest by the police or revenue collectors or accused by a private
complaint, the Kotwal had to investigate the charge personally. He had to
resort to court if there was a case against him. If there was a case of revenue
department against him, the case had to be reported to the Governor (subahdar).
The word subahdar and governor are used in the above firman interchangeably. In
cases where the punishment was not fixed in Islamic law and the Qadi had to
exercise his discretion, the opinion of the subhdar regarding conviction or
execution was very important for the qadi. Moreover he was personally dealing
with revenue cases (Khan, 1930, 149).
7.
Conclusion
In summing up the discussion about
the Mughal judicial system, an account of the relationship between the
executive and the judiciary is necessary. Moreover, the main reasons for the
disintegration of the Mughals are very relevant here. As a matter of fact both
the base and the superstructure of the Mughal state laid down by Aurangzeb
continued till the death of Muhammad Shah in 1748. The central authority of the
state weakened thereafter. However, even in the heyday of the Empire, the
administrative machinery used to change slightly from monarch to monarch.
Under the Mughals, judiciary and the
executive functioned separately except that the King and his Provincial
Governors exercised them together. However, when the Emperor or the Governor
held trials, the proceedings in his court were purely judicial. When the
Emperor heard appeals, he presided over a Bench consisting of the Chief Justice
and Qazis of the Chief Justice’s Court (Kazim, 1864-73, 1079-1102). As a Court
of first instance, he was assisted by a Darogha e-Adalat, a Mufti and a Mir Adl
(kazim, 1077). Similarly the Qazi-e-Subah was a member of the Governor’s Bench
and any decision by the Governor had to confirm to the legal opinion expressed
by the Mufti. On the other hand relations between the Qazis and the executive
were cordial during the reign of Aurangzeb as decrees of the law Court were
obeyed and the Qazis were held in great respect. Aurangzeb held it to be a
maxim that the complaint of a poor citizen against a highly placed individual
was to be given credence (Ahmed, 1941, 276-7). Some Hindu authors,
nevertheless, accuse Qazis of Aurangzeb to have been corrupt. (Jain, 1966). But
it seems that they are biased. It is hard to find examples where a Qazi was
removed by the Ruler on the ground that he gave an inconvenient decision.
Aurangzeb
had left a completely settled Empire at his death. Its disintegration commenced
in the reign of Muhammad Shah (1719-1748). He is said to have thrown an urgent
report of an important conspiracy into a barrel of wine as useless bother, and
did not recover from the effects of his orgy till two days after. Chaos started
on the death of Muhammad Shah in 1748. From 1750 A. D. onwards, there were five
puppet Emperors, who were quite incapable of exercising the control necessary
to preserve the vast Empire left by Aurangzeb. Consequently, the downfall of
the Mughal Empire started when the Emperors were no longer able to uphold
individual rights or to do justice between man and man, and when their
subordinates became too powerful as against the decrees of the courts. As a
result, in the Muslim India that remained, the judiciary became merged in the
executive in a manner always discouraged by Islam and the early Caliphs. The
Governors, who had assumed the powers of an Emperor in their Subhas, were now
supervising corrupt judicial officials. Every judicial official was now trying
every kind of case. The situation was summed up by an English official in 1772.
“Abuses in the administration of Justice were to be imputed rather to the
corrupt principle of the Muhammadan and Gentoo (Hindu) Judges than to any
defects in the Law or in the regulations of the courts” (Range, 1772,
371). It was in this state of affairs
when the East India Company was appointed Diwan of the Subah of Bengal in 1765
by a Royal Farman. In 1717, the Company had secured the right to collect
revenue over 38 villages near Calcutta in 1717. Moreover, Nawab Siraj-ud-Dula
captured Calcutta In 1756. However, the British took it back in the famous
battle of Plassey but it did not annex the territory and installed Mir Ja‛far
as Nawab. In 1765, he was succeeded by his minor son Najm-ud-Dula. Mir Ja‛far
had ceded the Zamindari of the 24 Parganas to the Company, which now controlled
an area of more than 800 square miles thus expanding its territories
surrounding the presidency towns under its control. This territory was known as
the ‘moffussil’. The Company provided the adalat system for the administration
of justice in the mofussil. It appeared that the fate of Muslim India had
changed forever.
Bibliography
1. Ahmad, Muhammad Basheer, (1941), The
Administration of Justice in Medieval India, The Aligarh Historical Research
Institute, Aligarh University.
2. Ahmad, Muhammad Basheer, (1978), Judicial
System of the Mughal Empire, Pakistan Historical Society, Karachi.
3. Ali, M. Athar, (1983), Akbar and Islam
(1581 – 1605), in Islamic Society and Culture: Essays in Honour of Professor
Aziz Ahmad, eds., M. Israel and N. K. Wagle, Delhi.
4. Badauni, Abdul Qadar, (1898-1925),
Muntakhab al-tavarikh, trans. & ed., G. Ranking, Calcutta: Bibliotica
Indica.
5. Baillie, N E., (1875), Digest of
Moohummudan Law on the Subjects to which it is Usually Applied in British
Courts of Justice in India, 2nd ed. Vol. 1, London.
6. Baillie, N. E., (1979), Mohammadan Laws on Land Tax According to the Moohummudan Law: Translated from the Fatawa Alumgeeree, Lahore.
7. Bernier, F.,( 1914), Travels in Mughul
Empire (1656-1668), 2nd ed. London.
8. Fadl, Abul, (1993) Akbarnamah, trans. &
ed., H. Beveridge, 3 volumes, Calcutta: Biblioteca Indica, n. d., reprinted New
Delhi.
9. Fadl, Sheikh Abul, (1975), A’in-i-Akbari,
vol. I, trans. H. Blochmann, ed., D. C. Phillott, Asiatic Society, Calcutta,
1927, reprinted Qausain, Lahore.
10.
Farrukh, Omar A. (1966), Ibn Taimiya on Public and Private Law in Islam,
Beirut: Khayats.
11.
Finch, William, (1921), Early Travels in India (1608-1611), ed. W. Foster,
Oxford.
12.
Foster, Willium, Munshiram Manoharlal, ed, (1990), The Embassy of Sir Thomas
Roe to India from 1615-19, Delhi.
13.
Hassan, Ibn, (1936), The Central Structure of Mughul Empire, Oxford University
Press.
14.
Husaini, S. A. Q., (1952), Administration Under the Mughals, Dacca, The
Paradise Library.
15.
Hussein, Wahid, (1934), Administration of Justice during the Muslim Rule in
India, Calcutta.
16.
Ikram, Sheikh M., (1982), Ruud-i-Kousar (Urdu), Idara Saqafat-i-Islamia,
Lahore.
17.
Jahangir, (1625), Tuzuk-i Jahangiri, trans. and eds., A. Rogers and H.
Beveridge, London.
18.
Jain, M. P., (1966), Outlines of Indian Legal History, Tripathi, Bombay.
19.
Juzjani, Minhaj al-Din b. Siraj al-Din al, (2006), Tabakat-i-Nasiri, trans.
& ed., H. M. Elliot & John Dowson, Lahore: Sang-e-Meel Publications.
20.
Kazim, M., (1864-73), Alamghirnamah, Bibliotica Indica, Calcutta.
21.
Khan, Ali Muhammad, (1930), Mir’at-i-Ahmedi, ed. Nawab Ali, 2 vols, and
supplement, Barada, 1927-28, vol. I
22.
Khan, I. Alam, (2005), Akbar's Personality Traits and World Outlook – A Critical
Reappraisal, in Akbar in His India, ed., Irfan Habib, Delhi: Oxford University
Press.
23.
Khan, Iqtidar A.,( 2005), Akbar’s Personality Traits and World Outlook – A
Critical Reappraisal, in Akbar and His India, ed., Irfan Habib, New Delhi:
Oxford University Press.
24.
Khan, Khawfi, (1874), Muntakhab-uI-Lubab, trans. & ed., H. M. Elliot and John Dowson,
Bibliotica Indica, Calcutta, 1874, reprinted, Sang-e-Meel Publications, Lahore,
2006.
25.
Manucci. N., Storia do Mogor, ed. & trans. W. Irvin, R. A. S., London.
26.
Mitchell, C. Paul, (2000), Sir Thomas Roe and the Mughal Empire, Karachi:
Mehran Printers.
27.
Mubarakpuri, Q. Athar, (1967), Hindustan mae Arabun ki Hakoomataen, (Urdu)
Maktab-i-‛Aarifeen, Karachi.
28.
Nyazee Imran A.,( 2005), Theories of Islamic Law, Islamabad: IIIT & IRI.
29.
Qadri, Anwar Ahmad, (1974) Justice in Historical Islam, Lahore.
30.
Qaim, Ibn Al, Al-Turuq al-Hukmiya fi Al-Siyasa Al-Shar‛iya, Matba‛t Al-Sunnah
Al-Muhamaddiya.
31.
Qureshi, I. H., (1958), The Administration of the Sultanate of Delhi, Karachi :
Pakistan Historical Society.
32. Qureshi, I. H., (1990), The Administration of The Mughal Empire, New Delhi: Atlantic Publishers.
33.
Range A, Report of the Committee of Circuit 1772, Vol. 19.
34.
Sarkar, Jadunath, (1972), Mughal Administration, Calcutta, Orient Longman.
35.
Sharma, Sri Ram, (1951), Mughal Government and Administration, Bombay.
36.
Taymiyya, Ibn, (1386 A. H), Siyasa Al-Shar‛iyya, Beirut: Dar al-Kutub
Al-‛Arabiya.